Tuesday, October 20, 2009

Development in Medical Marijuana Laws

Though not technically a subject that fits with the theme of this blog, the fact that I have advised California clients on how to incorporate and operate as a both a grower and seller of medical marijuana prompts me to provide this update.

On October 19, 2009, the US Department of Justice issued an official memorandum stating, in pertinent part, that it is the policy position of the department to discourage prosecution of persons who sell and/or buy marijuana in strict compliance with applicable state laws. (See http://blogs.usdoj.gov/blog/archives/192.)

First and foremost, the impact of this memorandum should not be overstated. The policy statement does immunize any conduct.  The production, sale and purchase of marijuana, regardless of the purpose, and regardless of state laws, remains a violation of federal law and can be prosecuted as such.  Rather, the Justice Department is suggesting federal law enforcement and federal prosecutors look the other way when marijuana is handled in compliance with state laws. The following excerpt from the memorandum makes that clear:

"This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion."

Nonetheless, the policy statement is a step in the right direction.  It is critical that residents of California dispensing marijuana for medical purposes carefully comply with state law as law enforcement will now likely feel additional pressure to separate the legitimate medical marijuana dispensaries from the illegitimate.  The following opinion issued by the Department of Justice for the State of California is an excellent resource:

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